Publish, and be damned by defamation lawyers

The federal Attorney-General, Philip Ruddock, is proposing a new national defamation law to replace the present mess of eight different laws of libel.

The idea of a national law replacing the state laws is an excellent one, providing that the new law is really better than the old. And Mr Ruddock's discussion paper does not lead us to believe that it will be, if he gets his way.

I say this mainly because of what is not in the proposals.

For instance, the paper does not address the biggest problem of all regarding current defamation laws, to wit that they serve the politicians and the rich and work against the interests of the citizen who presumes to believe that a democracy is necessarily based on the exchange of robust views and opinions.

In his written judgement in the case of Theophanous v the Herald and Weekly Times, Sir William Deane lamented that ". . . the use of defamation proceedings in relation to political communication and discussion has expanded to the stage where there is a widespread public perception that such proceedings represent a valued source of tax-free profit for the holder of high public office who is defamed and an effective way to 'stop' political criticism, particularly at election times. Indeed, the phrase 'stop writ' has entered the language."

The judges in this case argued that there is an implied right of free speech in the constitution because it envisages the Commonwealth as a democratic state, and that in turn implies that citizens must be free to criticise persons of high office and even to question their motives.

At the very least, any uniform defamation law must protect the right of citizens to speak on matters of public interest and to speak critically about the performance of public officers without fear of litigation. In the US, the concept of the public figure as inviting more than usual scrutiny and criticism is an important restraint on defamation actions by politicians and film stars.

Politicians and business people effectively control what may or may not be said by ordinary people by the threat of legal action. For the cost of a lawyer's letter they terrify their critics into silence.

Further, any uniform federal law must incorporate the NSW law's prohibition on the right of corporations to sue for defamation. Corporations all too often resort to libel actions to silence their critics - and property developers are most guilty of stopping local objections to their schemes by threatening legal action. The NSW law states specifically that it has been enacted to prevent corporations using their unequal power to stifle public argument about their operations.

Free Speech Victoria, of which I happen to be the president, is in favour of a uniform law, and wishes Mr Ruddock well, provided that any such law includes the following safeguards of the citizen's right to speak freely without fear of financial ruin. We believe that the law should guarantee: freedom to speak about corporations, freedom to speak on matters of public interest, freedom to speak about the performance of public officers and freedom to speak without the fear of unspecified damages.

Politicians and business people, under present laws, effectively control what may or may not be said by ordinary people by the threat of legal action. For the cost of a lawyer's letter, they terrify their critics into silence with the prospect of huge damages and costs. Similarly, they keep the media in check and restrict what can be reported with the spectre of financial punishment. Mr Ruddock would be doing us all a service if he were to write a law that restores some power to the governed over those who presume to govern.